According to the criminal law of People's Republic of China (PRC) (China):
Article 196 Whoever commits credit card fraud under any of the following circumstances, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan.
If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated property:
(a) using a forged credit card, or using a credit card fraudulently obtained with a false identity certificate;
(2) Using an invalid credit card;
(3) Fraudulent use of another person's credit card;
(4) malicious overdraft.
The term "malicious overdraft" as mentioned in the preceding paragraph refers to the behavior that the cardholder overdraws beyond the prescribed limit or time limit for the purpose of illegal possession, and refuses to return it after being urged by the issuing bank.
Whoever steals a credit card and uses it shall be convicted and punished in accordance with the provisions of Article 264 of this Law.
Extended data:
According to the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Impairment of Credit Card Management:
Article 6 If a cardholder overdraws beyond the prescribed limit or time limit for the purpose of illegal possession, and fails to return it for more than three months after being repeatedly urged by the issuing bank, it shall be deemed as "malicious overdraft" as stipulated in Article 196 of the Criminal Law.
In any of the following circumstances, it shall be deemed as "for the purpose of illegal possession" as stipulated in the second paragraph of Article 196th of the Criminal Law:
(a) knowing that there is no repayment ability and a large amount of overdraft can not be returned;
(two) squandering overdraft funds, unable to return;
(3) Escaping after overdraft, changing contact information and avoiding bank collection;
(4) evading or transferring funds, concealing property or evading repayment;
(five) the use of overdraft funds for illegal and criminal activities;
(six) other acts of illegal possession of funds and refusal to return them.
Malicious overdraft, the amount of which is more than 6,543.8+0,000 yuan but less than 6,543.8+0,000 yuan, shall be deemed as "a large amount" as stipulated in Article 196 of the Criminal Law; The amount is more than 65438+ ten thousand yuan and less than 1 ten thousand yuan.
It should be recognized as "a huge amount" as stipulated in Article 196 of the Criminal Law; If the amount is more than 6,543.8+0,000 yuan, it shall be deemed as "extremely huge amount" as stipulated in Article 196 of the Criminal Law.
The amount of malicious overdraft refers to the amount that the cardholder refuses to return or has not returned under the conditions stipulated in the first paragraph. Does not include compound interest, late fees, handling fees and other fees charged by the issuing bank.
Criminal responsibility should be investigated for malicious overdraft, but if the overdraft interest has been fully repaid after the public security organ files the case and before the people's court announces the judgment, it can be given a lighter punishment.
If the circumstances are minor, punishment may be exempted. If the amount of malicious overdraft is large, and all overdraft interest has been repaid before the public security organ files a case, and the circumstances are obviously minor, criminal responsibility may not be investigated according to law.
The constitutive elements of the crime of credit card fraud are as follows:
1, the object of this crime is the credit card management system and the ownership of public and private property.
2. The objective aspect of this crime is the behavior of the actor to defraud public and private property by using credit cards through fictional facts or concealing the truth.
3. The subject of this crime is a general subject, and a natural person can be the subject of this crime.
4. The subjective aspect of this crime is intentional, and it is direct intentional. Subjectively, the actor must also have the purpose of illegally possessing public and private property. Indirect intentional and negligent crimes cannot constitute this crime.
What needs to be pointed out here is that in all kinds of behaviors of credit card fraud, the perpetrators have different criminal intentions because of their different behaviors.
For example, if a fraudulent crime is committed by using a forged credit card or an invalid credit card, the perpetrator must subjectively know that it is a forged or invalid credit card, otherwise it cannot constitute this crime.
In the case of credit card overdraft, the distinction between goodwill overdraft and malicious overdraft should also be analyzed from the intentional content of the actor. If the perpetrator intentionally occupies other people's property, it is a malicious overdraft, and vice versa.
Malicious overdraft:
Overdraft refers to the act of allowing customers to withdraw money beyond the amount of funds in their accounts with the approval of the bank when there is no funds or insufficient funds in the accounts.
Overdraft is essentially a bank lending money to customers. The so-called malicious overdraft, according to the second paragraph of Article 196 of the Criminal Law, refers to the purpose of illegal possession by credit card holders.
The act of overdrawing beyond the prescribed limit or time limit and not returning it after being collected by the issuing bank. The essential difference between goodwill overdraft and malicious overdraft lies in the subjective difference of the actors.
Both of them objectively caused overdraft, but the doer of goodwill overdraft subjectively has the intention of using it first and then returning it, and then returning the overdraft and interest.
The perpetrator of malicious overdraft overdraws in order to keep the overdraft for himself, and he doesn't want to repay it at all or has no ability to repay it. He absconded to avoid debt.
According to the criminal law, in addition to one of the above four acts, the actor must also have a large amount of elements. If the amount is not large, even if the above acts are committed, they are illegal and do not constitute a crime.
As for what is "a large amount", there is no clear judicial interpretation at present. However, according to 1996 "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases", a large amount of personal fraud refers to more than 5,000 yuan. The starting point of a large amount of credit card fraud can refer to this regulation, and it is appropriate to use 5,000 yuan.
Baidu Encyclopedia-People's Republic of China (PRC) Criminal Law